What is the difference between filing a motion to reconsider and fling an appeal? Is it better to do one over the other?

In California, a Motion for Reconsideration can be filed in order for the court to reconsider a prior ruling. The requirements are set forth in California Code of Civil Procedure section 1008. Section 1008(a) provides as follows: "When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown." A motion for reconsideration cannot be used simply to ask the court to change its mind. Claims of 'new or different' law are not likely to be well received if the points were already argued to the court. If a party files a motion for reconsideration pursuant to Code of Civil Procedure section 1008, the party should be especially cognizant of the time period in which to file an appeal. California Rules of Court, Rule 8.108 (e) provides: "If any party serves and files a valid motion to reconsider an appealable order under Code of Civil Procedure section 1008, subdivision (a), the time to appeal from that order is extended for all parties until the earliest of: (1) 30 days after the superior court clerk or a party serves an order denying the motion or a notice of entry of that order; (2) 90 days after the first motion to reconsider is filed; or (3) 180 days after entry of the appealable order."

I am not licensed in California, so I am not qualified to speak to the specifics of California procedure, but this is a general response. A motion to reconsider is a filing asking the trial judge to reconsider a previous ruling. This is essentially a request that the same judge take a second look at the issue. An appeal takes the matter out of the trial judge's hands and sends it to a higher court. You are essentially asking a higher court to overturn the ruling of the trial court because the trial court made an error of law. Motions to reconsider are generally faster and cheaper than appeals, and filing a motion to reconsider does not prevent from appealing later. Appeals are much more complicated, will undoubtedly require a lawyer on your side, and take months to resolve.

Please see my response to your other query.

In addition to the excellent information from the other attorneys who have posted, I think you should be aware that in California you could be sanctioned for filing a motion for reconsideration without complying with the statutory requirement that you have new facts or law and a declaration as to why you couldn't have come up with such at the original hearing. The sanction amount is generally the cost in attorneys fees the other party had to pay to respond to the reconsideration motion.

The answers above are generally correct. As for time to file a motion to reconsider and an appeal, that is more complex. Here is a general overviews: assuming that the ruling at issue is an order upon a motion (and not a judgment), you must file a Motion for Reconsideration within 10 days after service of a copy of the order. As for an appeal - assuming that the order is appealable - you have 60 days from service of a copy of the order or a document entitled Notice of Entry of the Order to file a Notice of Appeal. That time can be extended by as much as an additional 30 days from the service of an order denying your motion for reconsideration but not later than 90 days from the date that you filed the motion for reconsideration, assuming that the order is properly made. If the order is not an appealable order, you may challenge it by a appellate court Petition for Writ of Mandate/Prohibition, but those are very difficult to win. I am a certified appellate law specialist with 25 years of experience in civil and family law appeals. See my website at www.FoxAppeals.com for my information about myself and my practice. Please consider calling me for a no obligation consultation.